The current metadata law came into force in Portugal in 2008, following the European directive aimed at data retention. However, the Constitutional Court has recently found that this law is illegal and a situation with unforeseeable consequences has been triggered.

What is metadata?

First of all, metadata is data that provides information about other data. In other words, it is the data behind other data. While it does not provide the exact content of that data (text/image/phone call), it can give relevant information about it, such as when the message was sent and from where.

What’s wrong with that?

The controversial situation started when the Constitutional Court made public a decision stating that the 2008 metadata law is against the Constitution because it goes against the privacy of all citizens and this violation of the citizens' right to privacy does not only apply to criminal suspects, but to everyone.

The court warned that the retention of network traffic data and location data for all "limit the privacy rights" of individuals.

Should European law not prevail?

Member States must comply with European rules. However, in order to remove doubts, the Constitutional Court has also addressed this problem by saying that even if a law comes from a European directive, it may be against constitutional law. Therefore, “a constitutional court decision is always above any European rule”.

The Court of Justice of the European Union itself eventually ruled in 2014 that this specific directive on Metadata was invalid because it "violated the fundamental right to a private life and the protection of personal data”.

Metadata as evidence

Several crimes, especially when it comes to organised crime are hard to prove, but metadata has helped law enforcement agencies to prove in court certain crimes. Without this kind of evidence, it will become even more difficult to collect evidence against these criminals. In other words, without being able to use metadata as evidence, many ongoing criminal investigations and prosecutions may fall flat.

However, the tricky part is yet to come. The ruling does not just apply to the future, meaning that already closed court cases could now be reopened on the basis of lack of evidence, which could lead to a judicial "earthquake" and the release of several detainees as the evidence supporting their detention is now "illegal".

What’s next?

Now, the law 32/2008 (Metadata law) has to be amended to meet the requirements of the constitutional court. However, the political forces are trying to make a "softer" amendment by changing the number of months these metadata are kept from the current 12 to six - in the hope of meeting the constitutional court's requirements without destroying the sometimes unique opportunity to arrest criminals.

According to Expresso, a special team has been set up that brings together all law enforcement agencies. This working group will make contributions to the government's bill.

The Prime Minister, António Costa, said it is necessary to have "a new legislative framework that complies with the decision of the European Court of Justice and the Constitutional Court, but which does not stop the fight against the most serious crimes".